Citation Nr: 1415231
Decision Date: 04/07/14 Archive Date: 04/15/14
DOCKET NO. 03-35 902 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Anchorage, Alaska
THE ISSUES
1. Entitlement to an initial disability rating in excess of 10 percent for service-connected residuals of a pelvic fracture with left hip pain.
2. Entitlement to a total disability rating based upon individual unemployability (TDIU).
ATTORNEY FOR THE BOARD
W. Doernberg, Associate Counsel
INTRODUCTION
The Veteran had active service from December 1967 to October 1969.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating determination of the Department of Veterans Affairs (VA), Regional Office (RO), in Anchorage, Alaska.
This matter was previously before the Board in May 2006, at which time it was remanded for further development. In February 2007, the Board denied the Veteran's increased initial rating claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) which, in a September 2008 Order, granted a Joint Motion for Remand. The matter was then returned to the Board in January 2010 and was remanded for additional development. In December 2010, the Board denied the Veteran's claim. The Veteran appealed the Board's denial to the Court which, in an April 2012 Order, granted a Unilateral Motion for Vacatur and Remand, vacating the Board's December 2010 decision and remanding the claim for further action.
In September 2012, the Board remanded this matter for additional development.
A review of the Virtual VA paperless claims processing system reveals VA treatment records from December 1996 to September 2013. The Veterans Benefits Management System does not reveal any additional medical documents pertinent to the present appeal.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
First, the Board finds that it is necessary to provide the Veteran with a VA examination with respect to his service-connected residuals of a pelvic fracture with left hip pain and TDIU. In the September 2012 remand, the Board directed the RO to schedule a VA examination if the record rendered it necessary to schedule such an examination. The RO attempted to schedule a VA examination, however, the Veteran stated in December 2013 that he had travel issues and would need to schedule the examination at some point beginning in March 2014.
The Veteran has attended VA examinations in the past and has specified that he will be able to attend future examinations. The Board therefore finds that it is likely that the Veteran will attend a VA examination.
Second, the record reflects that the Veteran is receiving Social Security disability payments. It is necessary to obtain these records.
Accordingly, the case is REMANDED for the following action:
1. The RO/AMC should provide the Veteran with a letter satisfying the statutory and regulatory duty to notify provisions with respect to the claim of entitlement to a TDIU rating.
2. The RO/AMC also should send the Veteran VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for him to complete, with instructions to return the form to the RO/AMC if he wants to seek a TDIU rating.
3. The RO/AMC should take appropriate action to contact the Veteran in order to afford him an opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO/AMC must attempt to procure copies of all records that have not previously been obtained from the identified treatment sources.
All attempts to secure this evidence must be documented in the claims file by the RO/AMC. If, after making reasonable efforts to obtain named records the RO/AMC is unable to secure same, the RO/AMC must notify the Veteran and (a) identify the specific records the RO/AMC is unable to obtain; (b) briefly explain the efforts that the RO/AMC made to obtain those records; (c) describe any further action to be taken by the RO/AMC with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond.
Updated treatment records from the VA Health Care System should also be requested and associated with the claims file. If the RO/AMC cannot locate such records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile.
4. The RO/AMC should clarify what type of Social Security benefits the Veteran is receiving. If it is SSA disability, then they must attempt to obtain any pertinent documents concerning the Veteran's award of Social Security disability benefits. If the RO/AMC cannot locate such records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile.
5. After completion of the above development, the RO/AMC should have the Veteran scheduled for a VA examination to determine the current severity of the service-connected disabilities in connection with his TDIU claim as well as the current severity of his service-connected residuals of a pelvic fracture with left hip pain. The claims file and all records on Virtual VA/VBMS must be made available to the examiner, and the examiner must specify in the examination report that the claims file and these electronic records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history.
After examining the Veteran and review of the evidence of record, including the Veteran's lay statements, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities cause him a functional impairment consistent with his education and occupational experience. The examiner must comment on the degree of this functional impairment, if any. This opinion must be provided without consideration of his nonservice-connected disabilities or age.
The examiner must also provide accurate and fully descriptive assessments of all symptoms related to the Veteran's service-connected residuals of a pelvic fracture with left hip pain. Ranges of motion, instability, and all other findings should be reported in detail.
The examiner is to review all pertinent records associated with the claims file to include the appellant's Virtual VA file. The examination report must state whether this review was accomplished.
A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination.
6. The Veteran is hereby notified that it is his responsibility to report for any VA examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013).
In the event that the Veteran does not report for a scheduled examination, the documentation included in the record must show that the notice scheduling the examination was sent to his last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of the scheduled VA examination must be placed in the Veteran's claims file.
7. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If an examination report is deficient in any manner, the RO/AMC must implement corrective procedures.
8. After completing all indicated development, the RO/AMC should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and he should be afforded a reasonable opportunity for response.
9. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).